Hail Bloomberg and his unconstitutional soda ban

Friday

Mar 15, 2013 at 12:01 AM

WASHINGTON — Sugary drinks are killing us, but is it government's role to regulate the sale of super-sized sodas? New York Mayor Michael Bloomberg says yes, citing the dramatic rise in the rates of diabetes and obesity, conditions that contribute to illness and premature death, and strain resources in the public health system.

Douglas Cohn and Eleanor Clift

WASHINGTON — Sugary drinks are killing us, but is it government's role to regulate the sale of super-sized sodas? New York Mayor Michael Bloomberg says yes, citing the dramatic rise in the rates of diabetes and obesity, conditions that contribute to illness and premature death, and strain resources in the public health system.

Taxpayers foot the bill for these costly health outcomes. That's why Bloomberg believes he has the responsibility, and the power, to restrict the availability of the extra-large sugar-laden drinks that have become the new normal in restaurants, coffee shops, theaters and fast-food establishments.

The 16-ounce size that Bloomberg wants to regulate would still be available at convenience stores and at the bodegas that dot the city's streets. Milk shakes would be exempted. They contain sugar but aren't simply empty calories because of their dairy base.

Critics howled "nanny state," and the discrepancies in the law, regulating a fountain soda purchased at a Dunkin' Donuts differently from one bought at a convenience store, introduced a host of legal questions.

The soda industry brought a lawsuit challenging the constitutionality of the mayor's order, and won the first round this week in what could be a protracted legal battle. Justice Milton A. Tingling Jr., writing for the State Supreme Court of Manhattan, called Bloomberg's initiative "arbitrary and capricious." He said the exceptions threaded throughout the law would result in confusion and conflicts throughout the city. The result, he wrote, would be "uneven enforcement, even within a particular city block, much less the city as a whole."

The judge is right: Why is it OK to buy a "Big Gulp" at your neighborhood 7-11, but it's not OK to buy a 16-ounce coffee with sugar at Dunkin' Donuts?

Put another way, though, why is it OK to ban smoking in restaurants and public places, but it's not OK to ban smoking in your local private law firm? The answer is that the government takes the first action on behalf of the public, and the local law firm — and virtually every other business establishment in the country — follows suit on its own because no smoking has become the new cultural norm.

Bloomberg is in the last year of his third term as mayor, and he clearly wants to leave a big legacy in terms of public health and safety.

He is spearheading an anti-gun violence group, contributing money to elect politicians in tune with his agenda. He has had success on his healthy living agenda, banning trans-fat in New York restaurants and requiring fast food restaurants to publish calorie counts.

He was in the vanguard of elected officials to call for a smoking ban in bars and restaurants in New York. Everybody laughed at first, but no one's laughing anymore, and they're not smoking in bars and restaurants anymore either. The City Council extended the ban to public parks and beaches in 2011, and there are fewer cigarette butts to be found in Central Park, but it's mostly the consequence of a changed culture, not aggressive NYPD enforcement.

Last year, there was a flurry of stories that Bloomberg would be pushing a ban on smoking indoors in your own home. The pushback to that from the public, and on editorial pages, was significant enough that if the mayor was considering such a policy, he was prompted to come forward and say nothing like that was in the works.

But he's not backing off on sugar drinks, and if he can tailor a proposal that is more uniform, and approaches the issue the way government did with smoking bans, Bloomberg could well be in the forefront of a welcome public policy revolution and cultural change.